Investigations of Complaints - Annual Report 2004-2005

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Section 1.B Investigations of Complaints

Annual Report 2004-2005 - An Operational Review of CSIS Activities

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B. Investigations of Complaints

In addition to its review function, SIRC is responsible for investigating complaints from the public about CSIS. Four kinds of complaints may be directed to the Committee for investigation:

complaints lodged by persons “with respect to any act or thing done by the Service” (Section 41);
complaints received concerning denials of security clearances to government employees or contractors (Section 42);
referrals from the Canadian Human Rights Commission of complaints made to it; and
Minister's reports in respect of the Citizenship Act.

Where appropriate, SIRC investigates complaints through a quasi-judicial hearing presided over by a Member of the Committee.

Through its investigation of complaints, SIRC determines whether the Service's activities have been carried out in accordance with the CSIS Act, Ministerial Direction and CSIS policy.

Following Section 41 investigations, SIRC is required, under the CSIS Act, to provide the Minister and the Director of CSIS with a report containing the findings of the investigation and any recommendations the Committee considers appropriate. The Act also directs SIRC to report to the complainant its findings and, if the Committee considers it appropriate, any recommendations made to the Minister and Director.

Following a Section 42 investigation, SIRC provides the Minister, the Director of CSIS, the deputy head of the government agency concerned and the complainant with a report containing any recommendations the Committee considers appropriate and those findings the Committee considers fit to report to the complainant.

Table 1 provides the status of all complaints directed to SIRC over the past three fiscal years, including complaints that were misdirected to SIRC, deemed to be outside the Committee's jurisdiction or investigated and resolved without a hearing (administrative review).

Table 1 Resolution of Complaints*
Description	2002-2003	2003-2004	2004-2005
Carried over	17	17	16
New	48	30	30
Total	65	47	46
Closed	48	31	28
Carried forward to subsequent year	17	16	18

* The Table reflects all complaints received by SIRC. However, not all complaints received resulted in an investigation by the Committee. Some were redirected to the appropriate government institutions, or were determined at the outset to be outside the Committee's jurisdiction, while others were withdrawn by the complainants.

Reports of Decisions: Case Histories

The following are summaries of the three decisions rendered by SIRC during the period under review in response to complaints filed with the Committee.

Report: Human Rights Complaint Referral

SIRC reported a decision concerning a complaint that was referred to the Committee by the Canadian Human Rights Commission under Section 45 of the Canadian Human Rights Act (CHRA).

The complaint alleged discrimination in contravention of the CHRA by the Service. More particularly, the complainant—a former employee of the Service—complained that the Service had failed to adjust hours of work and to allow time away from work, and thereby failed in its duty to accommodate the complainant's physical and mental disabilities.

The complainant had been working a limited number of hours per week because of disabilities. The Service required the duties of the complainant's position to be performed on a full-time basis. To have those duties performed on a part-time basis would have caused undue hardship to the Service. The Committee concluded that the Service did not fail in its duty to accommodate the complainant, and did not discriminate against the complainant on grounds prohibited by the Canadian Human Rights Act. However, the Committee noted that the Service could have been more sensitive in the manner in which it delivered its decision of not being able to accommodate the complainant with part-time employment.

Further, the Committee determined that—given the national security concerns associated with the investigation of the complaint—neither the Canadian Human Rights Commission nor the Canadian Human Rights Tribunal could conduct a meaningful investigation or hearing concerning the complaint.

Accordingly, the Committee recommended that the Canadian Human Rights Commission dismiss the complaint.

Report: Section 41 (“Any Act Or Thing”)

The Committee reported a decision concerning a complaint pursuant to Section 41 of the CSIS Act, which states that any person may make a complaint about “any act or thing done by the Service. ”

The complaint alleged that a Service employee had improperly conducted immigration security screening interviews with the complainant. After holding a hearing and reviewing the evidence, SIRC concluded that the complainant had not presented any evidence that would suggest the interviews were improperly conducted.

The Committee determined that, due in part to the fact that the complainant's first language was neither French nor English, the complainant suffered from misapprehension or confusion during the immigration screening process as a result of correspondence from CIC.

Report: Section 42 (Denial Of Security Clearance)

SIRC reported a decision on a complaint pursuant to Section 42 of the CSIS Act, concerning a denial of security clearance.

The complainant applied for employment with an agency of the federal government, which denied the applicant the required security clearance based on information given to it by CSIS. The complainant contested the denial of the security clearance by filing a complaint with SIRC.

The complainant was seeking a Top Secret security clearance. According to the Government Security Policy, a Top Secret security clearance may not be granted where there are reasonable grounds to doubt the applicant's loyalty to Canada or reliability as it relates to loyalty.

The Committee concluded that there were reasonable grounds to believe that the complainant may have engaged in intelligence collection activities on behalf of a foreign state, and appeared to have maintained regular contact with foreign representatives, who may have been involved in intelligence collection activities. Therefore, the decision of the deputy head to deny the security clearance was reasonable and the Committee recommended that the decision be upheld.

Complaints About CSIS Activities Under Section 41

Under Section 41 of the CSIS Act, SIRC must investigate complaints made by “any person” with respect to “any act or thing done by the Service.” Before SIRC investigates, two conditions must be met:

the complainant must first have complained to the Director of CSIS and not received a response within a reasonable period of time (approximately 30 days), or the complainant must be dissatisfied with the response; and
the Committee must be satisfied that the complaint is not trivial, frivolous, vexatious or made in bad faith. Under Section 41(2) of the Act, the Committee cannot investigate a complaint that can otherwise be addressed under existing grievance procedures of the CSIS Act or the Public Service Staff Relations Act.

Complaints About CSIS Activities Under Section 42

With respect to decisions by federal deputy heads to deny security clearances, Section 42 of the CSIS Act says the Review Committee shall investigate complaints from:

any person refused federal employment because of the denial of a security clearance;
any federal employee who is dismissed, demoted, transferred or denied a transfer or promotion for the same reason; and
anyone refused a contract to supply goods or services to the government for the same reason.

A complaint under Section 42 of the Act must be filed within 30 days of the denial of the security clearance. SIRC can extend this period if valid reasons are presented.

Referrals Under the Canadian Human Rights Act

In the event that the Canadian Human Rights Commission receives—under Subsection 45 (2) of the Canadian Human Rights Act—written notice from a Minister of the Crown that the practice to which a complaint relates was based on considerations relating to national security, the Commission may dismiss the complaint or refer the matter to SIRC. On receipt of such a referral, the Committee carries out an investigation and after consulting with the Director of CSIS pursuant to Section 55 of the CSIS Act, reports its findings to the Commission, the Minister who referred the complaint, and the complainant.